Opinion
96-CV-759 (TJM/GLS).
August 26, 1998
CHARLES TRAVIS, Petitioner, Pro Se, Mid-State Correctional Facility, Marcy, New York.
HON. DENNIS C. VACCO, Attorney General of the State of New York, Department of Law, Of Counsel, DARREN O'CONNOR, ESQ., Asst. Attorney General, Albany, New York, Attorney for Respondent.
REPORT-RECOMMENDATION
This matter has been referred to the undersigned by Chief United States District Judge Thomas J. McAvoy, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).
Petitioner filed the instant habeas corpus petition on May 13, 1996. This court issued an Order pursuant to the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. fol. § 2254, granting petitioner leave to proceed in forma pauperis, ordering service of the petition on respondent, and requiring service of an answer or other pleading by respondent. Respondent has filed his answer, together with the pertinent state court records and a memorandum of law. Petitioner has filed a memorandum of law and a traverse.
The state court records submitted by respondent are listed in the first paragraph of the answer.
Petitioner complains that he is unlawfully being held in prison beyond his conditional release date. In 1981, petitioner was convicted of three counts of sodomy and sentenced to concurrent terms of eleven to twenty-two years imprisonment. His conditional release date was March 14, 1995.
Petitioner raises four claims in his application for habeas corpus relief. Petitioner alleges that: (1) he was denied the right to appeal from the Appellate Division's decision; (2) he was denied the effective assistance of counsel in connection with his state habeas corpus proceeding; (3) he was denied due process in that the Division of Parole is "arbitrarily and capriciously" holding him past his conditional release date; and (4) he is being subjected to cruel and unusual punishment and discrimination because he is a sex offender.
Respondent argues for dismissal of the petition, claiming that grounds one and two are not cognizable on federal habeas review, and petitioner failed to exhaust all available state remedies with regard to grounds three and four.
1. Facts:
In January 1974, petitioner was convicted of attempted homicide for trying to smother his three year old son. Petitioner was sentenced to five years in prison. In July 1978, petitioner was released to parole supervision. (Record on Appeal ("RA") 21, 27, 28).
In January 1980, while still under parole supervision, petitioner sodomized his two sons, who were both under the age of eleven. In July 1980, petitioner again sodomized one of the boys. (RA 26-28). Petitioner was subsequently convicted of three counts of sodomy in the first degree and sentenced to concurrent terms of eleven to twenty-two years imprisonment. (RA 66). His sentence expires on July 14, 2002. (RA 67).
The Board of Parole considered petitioner for parole in May 1991 and again in May 1993, but denied petitioner's release due to the gravity of petitioner's offenses, his prior conviction, and his apparent resistance to treatment for sexual offenders. The Board that considered petitioner for parole in May 1993 devised a set of special conditions in anticipation of petitioner's conditional release in 1995. The conditions required petitioner to: (1) seek, obtain and maintain employment; (2) obtain outpatient mental health counseling; (3) avoid any unsupervised contact with children; and (4) avoid contact of any kind with his former wife and children, absent written permission of a parole officer. (RA 22, 34).
During the 1991 parole hearing, petitioner's parole officer noted that petitioner appeared to be in denial regarding the sexual dynamic of his criminal behavior. (RA 33). At the 1993 hearing, the Board noted that petitioner had recently discontinued treatment for sexual offenders. (RA 34).
On March 14, 1995 (petitioner's conditional release date), Commissioner Mulholland (a member of the Board panel that considered petitioner for parole in 1993) imposed two additional special conditions pursuant to Executive Law § 259-g(1) and N.Y. Code R. Regs., tit. 9 § 8003.3. The conditions were:
1. I will propose a residence to be approved by the Division of Parole, and will assist the Division in any efforts it may make on my behalf to develop an approved residence; and,
2. I will reside only in the residence approved by the Division of Parole.
Petitioner expressly agreed to the conditions, in writing. (RA 35-36, 68). Efforts to locate an approved residence have apparently been unsuccessful.
In July 1995, petitioner filed a petition for a writ of habeas corpus in New York Supreme Court, Oneida County, claiming that he was being held illegally beyond his conditional release date. Following a hearing, the court granted the petition and ordered plaintiff released. Respondents appealed and moved for a stay pending appeal. The stay was granted and on September 15, 1995, the Appellate Division, Fourth Department, reversed the grant of the writ. Petitioner failed to make a timely application for leave to appeal to the New York Court of Appeals.
2. Claims Not Cognizable on Federal Habeas Review:
A federal court may entertain a habeas petition only to the extent that it alleges custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). Thus, claims based on violations of state law are not generally cognizable on federal habeas review. Estelle v. McGuire, 502 U.S. 62, 67 (1991) (citing Lewis v. Jeffers, 497 U.S. 764, 780 (1990)) (additional citation omitted); Hameed v. Jones, 750 F.2d 154, 160 (2d Cir. 1984), cert. denied, 471 U.S. 1136 (1985).
Prisoners' Legal Services (PLS) represented petitioner in his state habeas corpus proceeding. According to petitioner, PLS refused to appeal the Appellate Division's September 15, 1995, Memorandum and Order vacating the writ of habeas corpus, but didn't tell him until the time to file an appeal had passed. In ground one, petitioner claims that he was denied the right to appeal from the Appellate Division's September 15, 1995, Memorandum and Order vacating the writ of habeas corpus. In ground two, petitioner claims that he was denied the effective assistance of counsel in connection with his state habeas corpus proceeding. However, because states have no obligation to provide collateral postconviction relief or to supply a lawyer for such proceedings, Pennsylvania v. Finley, 481 U.S. 551, 556-57 (1986), grounds one and two are not cognizable on federal habeas review and must be dismissed.
According to petitioner, PLS wanted a case that they would be more likely to win on the issue of holding inmates past their conditional release dates.
3. Exhaustion:
Prior to seeking relief in federal court, it is well settled that a petitioner must exhaust available state remedies or show that there is either an absence of available state remedies or that such remedies are ineffective to protect petitioner's rights. Ellman v. Davis, 42 F.3d 144, 147 (2d Cir. 1994), cert. denied, 115 S.Ct. 2269 (1995). The petitioner's claims must be fairly presented so that the state court has the opportunity to decide any federal constitutional issues. Id. In addition, the petitioner must have presented the substance of his federal claims to the highest available court of the state. Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 115 S.Ct. 1436 (1995) (citation omitted).
In the present case, petitioner has not exhausted his state court remedies with regard to the claims raised in grounds three and four of the petition. In ground three, petitioner claims that he has been denied due process by being held illegally past his conditional release date. Petitioner failed to present this claim to the state's highest court when he failed to appeal the Appellate Division's September 15, 1995, Memorandum and Order. In ground four, petitioner claims he is being subjected to cruel and unusual punishment and discrimination because respondents refuse to release him ("thus making him suffer punishment") while releasing all categories of felons other than sex offenders. This claim was not presented to any state court for review. Thus, petitioner has failed to satisfy the exhaustion requirement with respect to grounds three and four of the petition.
Although petitioner's claims are technically unexhausted, the court must still determine whether the claims should be "deemed" exhausted because they would be procedurally barred from presentation in state court. Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). Respondents argue that petitioner is now procedurally barred from asserting the claims in ground three in state court because he failed to apply for permission to appeal the Appellate Division's September 15, 1995, Memorandum and Order within thirty (30) days. See N.Y. C.P.L.R. § 5513(b) (motion for permission to appeal must be made within thirty days). As it is unlikely that the Court of Appeals would grant petitioner permission to appeal the Appellate Division's decision, the petitioner will be deemed to have exhausted, but procedurally defaulted upon, the claim in ground three of the petition.
A state prisoner who has procedurally defaulted on his federal claims in state court is entitled to federal habeas review of those claims only if he can show both cause for the default and actual prejudice resulting from the alleged violation of federal law, Coleman v. Thompson, 501 U.S. 722, 750 (1991), or establish that he is "probably . . . actually innocent." Murray v. Carrier, 477 U.S. 478, 496 (1986). Petitioner has not alleged cause for his failure to pursue his claim to the Court of Appeals. Since petitioner cannot show cause for his procedural default, and the state court records do not suggest that he is actually innocent, it is unnecessary for the court to determine whether he has suffered actual prejudice. Stepney v. Lopes, 760 F.2d 40, 45 (2d. Cir. 1985). Therefore, ground three of the petition must be dismissed.
The failure of petitioner's counsel to file a timely notice of appeal cannot be considered "cause" for procedural default. Wise v. Williams, 982 F.2d 142 (4th Cir. 1992), cert. denied, 508 U.S. 964 (1993).
Respondent further argues that petitioner would be precluded from raising the claims in ground four by res judicata, because the Appellate Division has already determined that petitioner failed to meet the special conditions for release and is not being illegally held beyond his conditional release date. Res judicata, however, is not a procedural bar. It does not appear that petitioner would be prevented from raising his claim in state court via a second habeas corpus petition or an Article 78 proceeding. See N.Y. C.P.L.R. § 7001, et seq. (habeas corpus); § 7801, et seq. (Article 78).
Nonetheless, the Antiterrorism and Effective Death Penalty Act of 1996 amended 28 U.S.C. § 2254(b) to permit courts to deny applications for a writ of habeas corpus on the merits, notwithstanding a petitioner's failure to exhaust state remedies. Pub.L. No. 104-132, § 104, 110 Stat. 1214, 1218 (1996) (codified at 28 U.S.C. § 2254(b)(2)). The claim raised by petitioner in ground four of the petition, though characterized as an Eighth Amendment "cruel and unusual punishment" claim, appears to state only an Equal Protection claim. The Equal Protection Clause of the Constitution essentially mandates that all similarly situated persons be treated alike. Artway v. Attorney General of State of N.J., 81 F.3d 1235, 1267 (3d Cir. 1996) (citing Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985)). The level of scrutiny applied to determine whether a particular classification complies with this guarantee differs according to the nature of the classification. Strict scrutiny is applied to classifications involving suspect or quasi-suspect classes, or to classifications impacting certain fundamental constitutional rights. Other classifications, however, need only be rationally related to a legitimate governmental purpose. Id. (citing Chapman v. United States, 500 U.S. 453, 465 (1991)); Riddle v. Mondragon, 83 F.3d 1197, 1207 (10th Cir. 1996).
The Eighth Amendment sets constitutional boundaries on the conditions of imprisonment. Boddie v. Schneider, 105 F.3d 857, 861 (2d Cir. 1997). Cruel and unusual punishment exceeds those boundaries, and involves the unnecessary and wanton infliction of pain. Id. (citing Whitley v. Albers, 475 U.S. 312, 319 (1986)). An official violates the Eighth Amendment when punishment administered is "objectively sufficiently serious" and the official has a "sufficiently culpable state of mind." Id. (citations omitted). Petitioner's allegations do not support an Eighth Amendment claim.
Sex offenders do not comprise a suspect or quasi-suspect class for Equal Protection purposes. See Artway, supra; Riddle, supra. Nor does the placement of residential conditions on sex offenders, or holding them beyond their conditional release dates if the conditions are not met, deprive these inmates of a fundamental right. See Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979) (finding "no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence").
The conditions placed on petitioner's release, and holding petitioner past his conditional release date because the conditions were not met, are rationally related to legitimate governmental purposes. According to the record, the conditions were added to increase the likelihood of petitioner's successful reintegration in society; ensure that he is in a stable residence with a cooperating adult on the premises who can alert petitioner's parole officer to any sign that petitioner is reverting to criminal sexual behavior; and to limit petitioner's exposure to potential victims. (RA 22-23, 35, 40-41). Ground four of the petition is without merit and must be dismissed.
WHEREFORE, based on the findings in the above Report, it is
RECOMMENDED that the petition be DENIED and DISMISSED.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have ten days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72, 6(a), 6(e), and it is
ORDERED that the state court records herein be returned directly to the office of the Assistant Attorney General at the conclusion of these proceedings. He has agreed to make them available for any appellate review.